To show ineffective assistance of counsel, first, a defendant must show counsel's
representation fell below an objective standard of reasonableness, and second, there is a
reasonable probability that, but for counsel's errors, the outcome of the trial would have been
different.

Steven R. Zinn, deputy appellate defender, argued the cause, and Jessica
R. Kunen, chief appellate
defender, was with him on the brief for appellant.

Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick
A. Tomasic, district attorney,
Arthur E. Rhodes, assistant district attorney, and Carla J. Stovall,
attorney general, were with him on the brief
for appellee.

The opinion of the court was delivered by

ABBOTT, J.: This is an appeal by the defendant, Kenneth A. Gardner, from his
convictions of premeditated first-degree murder, aggravated robbery, aggravated burglary, and
arson. Gardner was given a controlling sentence of life imprisonment plus 130 months without
the possibility of parole for 25 years. On March 6, 1998, this court affirmed Gardner's
convictions.

Gardner filed a motion for a new trial based on newly discovered evidence and, in the
alternative, ineffective assistance of counsel. The trial court denied the motion and Gardner
appealed.

The underlying facts of Gardner's conviction are described in detail in State v.
Gardner, 264 Kan. 95, 955 P.2d 1199 (1998). The facts will not be set forth again except
as
necessary in discussing the issue involved.

The murder took place on May 1, 1995. Counsel contends that he had learned that the
State found evidence, including fragments of a bullet buried in the floor, at the scene of the
crime a day or two after the murder, and that this information had never been revealed to
Gardner or his counsel and was not brought out at trial.

Fragments of a bullet had been recovered by the State from the floor after having gone
through a carpet, pad, and into the wooden floor. Fragments of a bullet had also been
recovered from inside the victim's head at the time of the murder. The victim's uncle, who
owned and lived at the residence, called the police. A detective came out, removed the
fragments from the floor, cut out a portion of the carpet and pad, and recovered a couch from
a dumpster because the bullet had gone through the couch. The police took possession of the
couch, pad, carpet, and fragments of the bullet.

By the time Gardner filed his motion, the evidence was no longer available. The
record indicates that the county attorney's office returned some of it to the victim's family and
anything remaining was destroyed sometime after May 11, 1998, after Gardner's direct appeal
had been completed.

Defense counsel admitted that he may have seen the bullet fragments and reports
showing they had been removed. His theory was that he was not shown the items because he
did not recall seeing them, but that if he did see them it was ineffective assistance of counsel
not to have raised it at the trial. The detective who removed the fragments from the floor was
not called as a witness, and no one testified concerning the appearance of the fragments or
expressed any opinion as to what size projectile they came from. The report is of no help in
establishing anything other than that bullet fragments were recovered from the floor and that
there was a bullet hole in the couch. There is no evidence to connect the bullet hole in the
couch to the bullet fragments found in the floor. As a result, it is sheer speculation whether
the fragments found their way into the floor at the same time the victim was murdered. No
one claims that the fragments touched the victim in any way.

The district attorney testified that it was his practice to allow defense counsel access to
the entire prosecution file and that he initialed everything the day he received it. The district
attorney stated: "I know that I did not receive any additional police reports after this case was
tried." It was his opinion that the report was in the file showing that fragments of a bullet had
been recovered from the floor and would have been in the file for the defense to view.

At the initial hearing, there was no evidence to show that the fragments were material
to the case. Insufficient evidence was offered at the hearing to show ineffective assistance of
counsel. Despite that fact, the trial judge gave Gardner additional time to investigate and
prepare evidence.

A few days short of a year later, a second hearing was held on Gardner's motion for a
new trial.

At the second hearing, the trial court denied the motion on several grounds, one of
which was that it was not material and there was no reasonable assumption that the results of
the trial would have been different had the evidence been presented by Gardner. The trial
court said: "All of the arguments that I think you would have made could have been
countered, as the State has mentioned, simply by them using the overwhelming circumstantial
evidence they had against your client that put him at the scene, in possession of property, and
behind the wheel of the truck that was the victim's."

On appeal, Gardner dropped his allegation of newly discovered evidence and relied
solely on ineffective assistance of counsel.

In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984),
the United States Supreme Court set forth a two-part test for ineffective assistance of counsel.
Neither prong of the Strickland test is met under the facts of Gardner's case. That
test is
described in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985); first, the
defendant
must show counsel's representation fell below an objective standard of reasonableness, and
second, there must be a reasonable probability that, but for counsel's errors, the outcome of
the trial would have been different. 236 Kan. at 656-57.

Regarding counsel's representation, the record is not clear as to whether Gardner's
counsel overlooked the report on the second bullet or simply decided that the second bullet was
inconsequential. It would have been reasonable for the defense attorney to make the strategic
decision not to present evidence of the second bullet at trial because there is no way to tell
whether it would have helped in Gardner's defense or would have instead demonstrated
premeditation. As for the second part of the test, Gardner's counsel stated, "I guess I can't
really argue that it would have made a difference to the jury because I don't know what it
would have revealed." There is no showing that the defendant was prejudiced by his counsel's
failure to present the evidence of the second bullet, and, consequently, he was not denied
effective assistance of counsel.